Bombay High Court
Ravindra Prabhulal Mundankar vs Khandsh Education Society ... on 3 December, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 CIVIL APPLICATION NO.12660 OF 2021
IN WP/1750/2018
MAHAVEER PRAVIN JAIN
VERSUS
KHANDSH EDUCATION SOCIETY, THROUGH IT'S
SECRETARY, AMALNER, JALGAON AND OTHERS
WITH
CIVIL APPLICATION NO.12661 OF 2021
IN WP/1738/2018
RAVINDRA PRABHULAL MUNDANKAR
VERSUS
KHANDSH EDUCATION SOCIETY, AMALNER AND
OTHERS
...
Mr B. R. Waramaa, Advocate for applicants;
Mr S. P. Brahme, Advocate for respondent Nos.1 & 2;
Mr S. G. Sangle, A.G.P. for respondent Nos.3 & 4
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 3rd December, 2021
PER COURT:
1. In both these civil applications the applicants were working
as 'Junior Clerk' in Class-3 post and a 'Peon' in Class-4 post,
respectively. The issue raised in their writ petitions is as against
the refusal of grant of approval by the concerned authority on the
ground that these two applicants were appointed irregularly. The
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salary grants were therefore not extended to these two employees
and they were treated as being in the employment of the
Institutions, which posts were not supported by grant-in-aid.
2. While dealing with the writ petitions filed by these two
petitioners, challenging the refusal of approval, this Court
(Coram: Z. A. Haq and S. M. Gavhane, JJ.) admitted the petitions
vide order dated 24/02/2020 and directed the Management as
under :
"4. However, considering the facts of the case and
nature of the controversy, following order is passed :
[i] The Respondent-Management shall make payment
to the petitioner in the prescribed pay scale as per the
rules, for the post of Peon.
[ii] The arrears, after adjusting the amount paid, shall
be paid by the Respondent-Management by a Demand
Draft or by depositing the amount in the bank account
of the petitioner, till 15.05.2020.
[iii] The Respondent-Management shall continue to
pay the regular salary to the petitioner as per the
prescribed pay scale every month along with other
emoluments by depositing the amount in the bank
account of the petitioner.
[iv] The Respondent-Management is at liberty to make
claim for disbursement of the amount from the
department and if such claim is made, the department
shall take decision as per the rules."
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3. The Management preferred review petitions, which were
considered by this Court and by order dated 24/09/2021, this
Court recorded in paragraph Nos.7 to 14 as under :-
"7. The contention is that the writ petitions have been
filed by the original appellants/ employees, who were
terminated employees of the review applicant/
Management. Both the parties settled the dispute before
the University Tribunal and the Management agreed to
reinstate the employees without backwages on the
condition that they would be paid salary as per the pay
scale. The Management would seek reimbursement of the
amount of salary paid to the employees and if the
Education Department declines to sanction the payment as
per the pay scale, the Management would not be
responsible. Since the Education Department declined to
sanction salary grants as the employees, according to the
Education Department, were not appointed by following
the legal procedure, that the employees have preferred
Writ Petition Nos.1738/2017 and 1750/2018 for
challenging the decision of the Education Department
dated 18.08.2017.
8. We find from the record that the learned counsel
representing the Management, when the interim orders
sought to be reviewed dated 24.02.2020 were passed, is
not the advocate, who has preferred these Review
Applications. When the writ petitions are pending and the
order sought to be reviewed is an interim order passed
therein, the party seeking review should have practiced
self imposed restraint and ideally should have approached
this Court through the same advocate. Nevertheless, we
have extensively heard the learned advocate for the review
applicants and we do not intend to go into the issue as to
why the Management has opted for a new advocate. We
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leave this issue to the good conscience and wisdom of the
Review Applicants.
9. It is undisputed that the employees at issue were
being paid Rs.140/- per day, which is about Rs.4200/- per
month. Our judicial conscience is shocked by this fact. We
do not expect a human being to keep his mind, body and
soul together with a paltry amount of Rs.4200/- per month
in which he and his family is to survive.
10. The above aspect was canvassed before the learned
Bench which passed the interim orders dated 24.02.2020
and after considering this aspect, the learned Bench has
passed the interim orders.
11. The learned advocate for the review applicants/
Management submits that the directions at paragraphs
4(i) and 4(iv) need to be reviewed. The basis for such
contention is that the settlement between the employees
and the Management does not prescribe that the
Management should pay the pay scale to the employees if
the Education Department does not sanction the
prescribed pay scale. We do not find that the said
submission could be sustained for the reason that the
compromise between the employees and the Management
cannot create a financial burden on the State Government,
which is not a party to the settlement between the two
outside the Court. No such settlement without
participation of the Government, could create a financial
burden on the Government, either directly or indirectly. In
this backdrop and keeping in view that an employee
cannot be expected to sustain himself and his family in
Rs.4200/- per month, we do not find that paragraph 4(i)
deserves to be reviewed.
12. Insofar as paragraph 4(iv) is concerned, the State
Government, which is not a party to the settlement, is not
obliged to grant funds for the reasons which are already
subject of challenge in the pending Writ Petitions. The fact
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remains that the Management has reinstated the
employees so as to avoid the judgment of the University
Tribunal and after the employees waived the backwages
which reduced the financial burden on the Management.
Disallowing of the bills, would cast the burden on the
Management to make the payment of salary to the
employees, who are admittedly working with the
Management and cannot be expected to survive with
Rs.4200/- per month.
13. In view of the above, paragraph 4(iv) of the interim
order does not call for review as no error or mistake
apparent on the face of the record is made out.
14. The Review Applications are, therefore, rejected."
4. Paragraph 12 of the above reproduced order would indicate
that these applicants were earlier terminated and they had
approached the University Tribunal and vide judgment of the
learned University Tribunal, they were reinstated in employment.
5. By these two civil applications, the applicants submit that
they have been terminated from employment by orders dated
01/11/2021, on the ground that they were appointed as daily
wagers, they were not occupying a post and as the Management
has to pay their salary from it's coffers, the Management cannot
afford to continue them in employment without salary grants
being extended to them.
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6. We have perused the impugned order. Though the
applicants have not pleaded in their civil applications, we find that
the impugned order dated 01/11/2021 is based on a Resolution
passed by the Governing Council of the Management on
01/11/2021 and the services of the applicants have been
terminated with retrospective effect from 31/10/2021. In the light
of the law laid down by this Court in Assaram Raibhah Dhage
Vs. Executive Engineer & ors., 1989 (2) C.L.R. 331,
termination with retrospective effect is unforeseen and
impermissible in law. The Management can surely terminate an
employee by following due process of law as a Court cannot
prevent a Management from terminating services of an employee
by way of blanket relief.
7. The learned Advocate for the Management graciously
submits that he would take instructions from the Management and
make a statement on 07/12/2021.
8. In view of the above, we are placing these applications in
the 'passing orders' category, on 07/12/2021.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
sjk
